When does an injury arise from employment? — The State of South Australia v Roberts [2018] SASFC 25

23 April 2018

The Full Bench of the Supreme Court (“the Court”), on appeal from the Full Bench of the South Australian Employment Tribunal (“the SAET”), recently considered the question of when employment is a significant contributing cause such that an injury arises from employment.

The Return to Work Act 2014 (“the Act”) prescribes, at section 7(1), that the Act only applies to an injury if (and only if) it arises from employment. Under section 7(2)(a) of the Act, an injury arises from employment if the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury.

The facts of the case are:

• The worker was employed as a full-time lecturer in hairdressing by TAFE SA.
• Between July and October 2015, she was required to complete a teaching placement in Oodnadatta, teaching hairdressing to Aboriginal women in Coober Pedy and Oodnadatta.
• While there, she stayed in accommodation arranged and paid for by TAFE SA.
• While the initial accommodation was reasonable, for the last week of her placement, she was required to stay in a poorly maintained metal on-site cabin at the local caravan park, with a broken air-conditioning unit and torn fly screens.
• On her penultimate night in the accommodation, she was bitten by mosquitos, suffering numerous mosquito bites to her face and arms.
• Within a few days, she began to suffer from a high fever, diarrhoea, painful joints and vomiting, together with swelling to her right eye and the right side of her face.
• She was subsequently diagnosed as having either reactive arthritis or inflammatory polyarthritis, likely arising from the mosquito bites.
• She was later diagnosed with psychiatric sequelae, also likely arising from the mosquito bites.
• Three separate workers compensation claims were, initially, rejected by the State.
• On review before the SAET, the Deputy President accepted two of the three claims (the third failing on medical evidence, not causation).
• Both the Full Bench of the SAET and now the Full Bench of the Supreme Court, have upheld this decision and dismissed appeals by the State.

In dismissing the appeal of the State against the decision of the SAET (which found on both the original application and on appeal to the Full Bench that the injury was compensable as arising from employment), the Court found as follows.

1.    When a question of causation is considered in the context of a statutory compensation regime, the issue must be decided by reference to the statutory text construed and applied in a manner which best effects its statutory purpose.

2.   The additional requirement in the second limb of s 7(2)(a) that “employment was a significant contributing cause of the injury” is intended to exclude entitlement to compensation where employment was not a cause but was merely the occasion for the injury, or where employment was not in any real or meaningful sense responsible for the injury.

3.    Employment will be a significant cause of an injury if it is an important or influential cause. This necessitates an evaluative judgement on the part of the decision-maker and careful identification and consideration of all relevant facts and circumstances surrounding the injury and the employment of the worker.

4.    A “but for” test cannot be the sole determinant of causation under the second limb of section 7(2)(a). However, it can be applied as part of the reasoning process.

5.    The second limb of section 7(2)(a) does not require that a worker’s employment must have exposed them to a greater risk of injury.

6.    The Deputy President and the Full Bench of the South Australian Employment Tribunal did not err in concluding that the respondent’s employment was a significant contributing cause of her injury.

What does this mean for councils?

Quite simply, a compensable injury can occur even where other factors may have been a contributing cause of the injury, provided that the employment was a significant contributing cause of the injury. This could include, as in this case, where an employee is accommodated away from home and the injury occurs while the worker is not working, but the injury is caused due to the worker’s presence in that location.

Contact us if you have any questions about worker’s compensation, or other employment matters.